Punit Kumar (Migration)

[2020] AATA 1115

Punit Kumar (Migration) [2020] AATA 1115 (22 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. Punit Kumar Punit Kumar

CASE NUMBER:  1930064

HOME AFFAIRS REFERENCE(S):          BCC2019/3219892

MEMBER:P. Adami

DATE:22 January 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 22 January 2020 at 4:01pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – limited academic progress – education provider required the applicant change to diploma level course – compelling need to remain in Australia – diploma courses completed – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

Koellner v Spicer [2019] NSWSC 17571
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211; (2005) 143 FCR 204
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the Applicant had breached that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed would provide a qualification from the Australia Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant’s student visa was granted on 23 August 2018 for the purpose of undertaking studies in the Bachelor of Business (Professional Accounting). On 26 February 2019, the applicant obtained enrolment in a Diploma of Leadership and Management, which is a course which is at a lesser level than the Bachelor of Business.

4. By way of letter dated 17 September 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC). On 23 September 2019, the applicant responded in writing to the Department’s NOICC.

5. The applicant appeared before the Tribunal on 19 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

8. The Tribunal has reviewed and considered the materials on the Tribunal file. This includes but is not limited to:

   a.The applicant’s 12 December 2019 reply to the Tribunal’s Invitation to Attend a Hearing;

   b.Group Colleges Australia (GCA) Offer and Acceptance of Enrolment dated 10 May 2019 sent to the applicant for the Bachelor of Accounting course ending 28 April 2023;

   c.The applicant’s 23 September 2019 reply to the Department’s NOICC;

   d.3 Bank Transfer Receipts for $1,350 payments made by the applicant to Southern Cross School of Business;

   e.Overseas Student Confirmation of Enrolment (COE) issued to the applicant for the Diploma of Leadership and Management course ending 21 February 2020;

   f.The Department’s Decision Record dated 21 October 2019;

   Did the applicant comply with Condition 8202?

9. Condition 8202(2)(b) of the applicant’s visa requires that the applicant maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (AQF). This qualification must be at the same level as, or at a higher level than the registered course in relation to which the visa had been granted. The AQF is the measure for categorising courses within the Australia education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course, and the depth of achievement and autonomy required that successful completion of the course represents. AQF Level 1 (Certificate 1) has the lowest complexity, and AQF Level 10 (Doctoral Degree) has the highest complexity. The AQF is administered by the Department of Education and Training.

10. The applicant is a 27 year old Indian male. The applicant arrived in Australia on 27 November 2016. The applicant completed a Graduate Certificate in Leadership and Diversity, and then enrolled in and completed a Graduate Diploma in Portfolio Management in July 2017. In July 2018, the applicant commenced studying the Bachelor of Business (Professional Accounting) at the Elite Education Institute (EEI or Elite). After studying 2 trimesters, the applicant states in his 23 September 2019 response to the NOICC that, “due to low progress EEI informed me that they will have to revise my course plan, that is put me in a packaged course of diploma leading to the bachelor course.” The applicant explains that he sought to catch up the failed subjects and to otherwise remain in the Bachelor of Business; however Elite would not allow this plan.

11. The applicant states in his 23 September 2019 reply to the NOICC that he had no other option than to agree with EEI, however EEI would not take the fee from the deposit money already paid for the Bachelor of Business. The applicant felt he was being exploited, and so the applicant switched to the Southern Cross School of Business. The applicant wrote, “I was told by my counsellors that I might need to change the course or college because if I continue with such low progress, I will certainly be in a breach of visa condition.” Although not intending to breach any visa condition, the applicant was unable to obtain an offer letter from another education provider for a similar level AQF level course without having completed the prerequisite subjects.

12. In his NOICC response, the applicant states that from February 2019 “I am studying a diploma course…” At the hearing and in his NOICC response, the applicant conceded that he was studying at a Bachelor degree level; however he went down the AQF scale to the Diploma course level. This is consistent with the delegate’s Decision Record, in which the delegate found that the Bachelor degree is a Level 7 qualification from the AQF, yet the Diploma level course is a Level 5 course on the AQF scale. The delegate found that the applicant had his Bachelor degree course enrolment cancelled on 6 February 2019, and to date, the applicant has not enrolled in a course at the Bachelor degree level, although he has stated an intention to do so having completed his current course in February 2020. As such, the delegate concluded the applicant did not maintain his enrolment at the same level, or higher, as required in relation to the course for which the student visa was granted.

13. Accordingly, the Tribunal considers that the applicant was not enrolled in a suitably rated AQF course from 6 February 2019 as required by condition 8202(2)(b), and that the applicant was in breach of his visa.

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

15. As set out above, the applicant’s evidence was that his first two chosen courses were successfully completed. The applicant chose to study the Bachelor of Business for which a new visa was granted, however, the applicant did not make adequate progress and the course provider EEI required the applicant to complete a Diploma before returning to the Bachelor degree course. As noted above, the applicant felt he was being exploited by EEI and this is something strongly emphasised by the applicant. As noted above, other course providers that were consulted also required the applicant to complete a Diploma before being admitted into a Bachelor degree course. The applicant has nearly completed the Diploma of Leadership and Management at the Southern Cross School of Business. The applicant plans to return to the Bachelor of Business and hopes to obtain credits for satisfactorily completed subjects from his first endeavours in the Bachelor of Business.

    The purpose of the visa holder’s travel and study in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

16. The applicant travelled to Australia in November 2016 to study. In his 23 September 2019 reply to the NOICC, the applicant states, “Since my arrival in Australia, I have been continuously studying; I may not have been studying on a similar AQF Level but I certainly haven’t stayed away from studies…” In August 2018, the applicant applied for and was granted another student visa to study the Bachelor of Business; however the delegate notes that on 6 February 2019 this enrolment was cancelled due to the non-payment of fees. On 26 February 2019 the applicant enrolled in the Diploma of Leadership and Management, which he soon expects to complete.

17. The applicant told the Tribunal that he has accepted the 10 May 2019 GCA offer of enrolment, with the course starting in May 2020 and ending in April 2023. The applicant told the Tribunal that he passed 5 out of 8 subjects initially, and that he expects to obtain credits for the satisfactorily completed prior learning, and therefore expects to finish before the 28 April 2023 date in the offer as received from GCA.

18. 'Compelling' and 'Need' are words that ought to be given their ordinary meaning having regard to the purposes of the legislation. They are not defined in either the PAM3 or the Act.

19. In Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211; (2005) 143 FCR 204, Crennan J (then sitting as a judge on the Federal Court) considered the definition of the word ‘compelling’ in the context of the Migration Regulations 1994 (Cth). Her Honour concluded at [37], p213 that ‘compelling’, when considered in the legislative framework regarding the visa regime, “is wide and unqualified. “Compelling” in its wide, ordinary meaning means “forceful”.” Her Honour concluded that there was nothing in the relevant subclause which indicated that compelling should be construed narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing, or which indicate that compelling includes an involuntary element, involving circumstances beyond a person’s control or necessity (see [37], p213).

20. Although used in a different context to the visa regime, various courts have stated that “need” is a relative concept, it is different from ‘want’ and does not simply mean ‘demand’ or ‘desire’. Lord Neuberger of Abbotsbury in R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 42 at [54] stated, “”’Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but falls far short of ‘cannot survive without’.”- see Koellner v Spicer [2019] NSWSC 17571 at [123]-[126].

21. The Tribunal considers that the compelling need that is to be assessed in regard to PAM3 amounts to an assessment as to whether the applicant has a forceful reason to travel to or remain as a student in Australia, which is more than a want to study but less than a necessity to study in Australia.

22. At the hearing and in his 23 September 2019 and 12 December 2019 submissions, the applicant emphasises that his change in AQF Level was not intentional and that he is keen to return to study at the Bachelor level, before returning to his home country. The Tribunal considers on the evidence before it that the applicant has not adequately established a compelling need to remain in Australia.

23. The Tribunal gives this factor minimal weight in favour of cancelling the applicant’s visa.

    The extent of compliance with visa conditions

24. There is no evidence before the Tribunal that the applicant has breached other conditions of his visa. The Tribunal expects that a visa holder will generally adhere to the conditions imposed on them, and the Tribunal is mindful of the significance of the breach of condition 8202. The Tribunal gives minimal weight in favour of the applicant that there are no additional breaches of visa conditions.

    The degree of hardship that might be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

25. The delegate notes in his decision that the applicant in is NOICC did not provide specific information relevant to the hardship factor, however, the delegate did presume that some hardship would result. When asked by the Tribunal at the hearing about any hardship that may result, the applicant told the Tribunal that he will have wasted the cost of studying, and would return home without a degree. The applicant suggested to the Tribunal that without a degree there is nothing to show for his time spent in Australia. The applicant also told the Tribunal that his parents would be disappointed as they pay for his studies in Australia.

26. The Tribunal accepts that there will be some hardship suffered as explained by the applicant if his visa remains cancelled. However, the Tribunal notes that the applicant will have completed a Diploma of Leadership and Diversity, a Graduate Diploma in Portfolio Management, and a Diploma of Leadership and Management since arriving in Australia to study.

27. Further, the Tribunal considers that the exploitation that the applicant felt he was enduring as a result of the treatment by EEI is tempered given the applicant sought to enrol in a similar course at other institutions, but like EEI they also required completion of a lower level business course. The applicant in his 12 December 2019 submission wrote, “I tried at all the other institutes, but the condition was to do the prerequisite in the business course, which I am currently pursuing at SCSB.” The Tribunal considers that this tempers the applicant’s feeling of being exploited and any upset the applicant feels was caused by EEI.

28. The Tribunal does not consider the applicant’s or his family members’ hardship to be significant or onerous, and the Tribunal gives them minimal weight in favour of not cancelling the applicant’s visa.

    Circumstances in which the grounds for cancellation arose- whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

29. As set out above, the applicant was informed by Elite that due to low progress; he was informed that his course plan would have to be revised. The applicant writes in his 23 September 2019 submission, “…I was told by my counsellors that I might need to change the course or college because if I continue with such low progress, I will certainly be in breach of [sic] visa condition.” As noted above, the applicant in both his evidence at the hearing and in his written submissions stated that he felt he was being exploited, however, this appears to contradict his own counsellors’ advice, and appears to be contradicted by the fact that other institutions would not accept the applicant as a transferring student in the same or similar course.

30. The applicant noted to the Tribunal and in his September 2019 submission that he had no intention of breaching any visa condition, and the Tribunal accepts this. The applicant told the Tribunal that he sought enrolment at other institutions and that he “had multiple sessions with student counselling dept. at EEI and kept asking them to justify how I was eligible for the higher education course when I applied and why should I be downgrading now…” The applicant then notes that he raised concerns about the assessment criteria but understood it was in their discretion, and that ultimately his concerns were “simply disregarded.”

31. The Tribunal understands the applicant’s frustration with EEI, however, the applicant appears not to accept that it was as a result of his lack of progress that the issue regarding his suitability in the degree course initially arose. As noted by the applicant, his own counsellors and other institutions were aware of the impact that his progress was having and would continue to have on the applicant. The Tribunal does not know why the applicant did not apply to seek a new and suitable visa given he could not secure enrolment in a bachelor level or higher course either at Elite or any other education provider.

32. The Tribunal is unable to weigh the steps the applicant took to preserve a suitable and appropriate student visa status, because the Tribunal was not informed of any steps taken by the applicant other than meeting with Elite and having his concerned disregarded. For example, the applicant did not give evidence about the steps he took with the Department to ensure he was in compliance with his visa conditions; also the applicant did not provided evidence of correspondence he made with EEI at the time explaining his position or of Elite’s reasoning for not permitting him to continue in the bachelor level course. The Tribunal notes the applicant took some steps to protect his interests, but the extent of those steps beyond meeting with Elite is unknown, and therefore, the Tribunal cannot weigh the applicant’s endeavours with any response or advice he received from either Elite or his own advisers.

33. The Tribunal considers that the circumstances in which the grounds for cancellation arose were as a result of the applicant’s lack of progress in his studies. The Tribunal considers that there is no evidence before it of any extenuating circumstances beyond the applicant’s control that led to the grounds for cancellation existing (e.g. an injury, mental illness etc.). As a result the Tribunal gives significant weight to this ground towards the cancellation of the applicant’s visa.

    Past and present behaviour of the applicant towards the department

34. The applicant completed his response to the NOICC on 23 September 2019. The applicant was cooperative in his dealings with the Tribunal. No adverse information has been provided to the Tribunal. The Tribunal gives this some weight in the applicant’s favour not to cancel his visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140

35. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s140 of the Migration Act 1958. The Tribunal places no weight on this factor in the applicant’s favour.

    Whether there are mandatory legal consequences of a cancellation; whether cancellation would result in the visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Minister’s intervention

36. The applicant did not propose any consequences that would be particular to him in this regard, and the Tribunal considers that the ordinary results are likely to follow. This may mean that the cancellation of the applicant’s visa may result in the applicant becoming an unlawful non-citizen and may therefore be liable to detention and removal under the Act should he not voluntarily depart Australia.

1. Further, if the applicant’s visa was cancelled under s116 of the Act, the applicant will become subject to s48 of the Act which will result in the applicant having limited options to apply for further visas in Australia. The applicant would also be subject to the Public Interest Criterion 4013 with the effect that he may not be granted a temporary visa for a period of 3 years from the date of the cancellation.

2. The Tribunal finds that there are mandatory legal consequences which would impact the applicant should he not voluntarily return to his home country. The Tribunal considers that this factor weighs against the exercise of discretion in the applicant’s favour not to cancel his visa, as these consequences are the intended outcome of a finding that a breach of a visa should result in the cancellation of that visa. The Tribunal gives this factor little weight towards the visa not being cancelled.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

3. There is no information before the Tribunal that this application raises any questions of Australia’s international obligations, and the Tribunal gives this factor no weight in the applicant’s favour.

   Any other relevant matters

4. The applicant told the Tribunal that he wishes to get the opportunity to extend his visa and earn a degree in Australia. The applicant stated that his position is shameful for his parents, and that a degree would improve his life and assist in making a better career for himself. The Tribunal accepts the applicant is keen to continue his studies in Australia. The applicant told the Tribunal that when he completes his current Diploma course in February 2020, he will study the Bachelor of Accounting, as he had accepted the GCA 10 May 2019 offer. The applicant did not provide the Tribunal evidence of his acceptance of the GCA offer, other than his oral evidence at the hearing. The applicant told the Tribunal that the course will run from May 2020 to April 2023, however given he had completed some subjects successfully in his first attempt in the course, he expected to obtain credits for prior successfully completed learning, and therefore finish sooner than April 2023.

5. Proceeding on the basis that the applicant is accepted and enrolled in the bachelor degree at GCA, the Tribunal places minimal weight on this factor in favour of not cancelling the applicant’s visa. The Tribunal is mindful that the applicant, should his visa not be cancelled and he were given the opportunity to study the proposed bachelor course, the applicant will likely have spent approximately 6 years completing a graduate certificate, graduate diploma, diploma and a bachelor’s degree. According to the delegate’s decision, the applicant was granted a student visa on 23 August 2018 for the purpose of studying the Bachelor of Business (Professional Accounting) degree (which enrolment was cancelled due to the non-payment of fees on 6 February 2019).

6. Having carefully considered the circumstances of the applicant and weighing them with reference to the above considerations as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

7. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

   P. Adami
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)     The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)     a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)     must be enrolled in a full time registered course; and

   (b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)     must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.